[JURIST] Through their questions and various statements during a one-hour oral argument [transcript, PDF] on Tuesday, most of the Supreme Court [official website] justices indicated at least some consensus about their opinion of the practice of gerrymandering. With the exception of Justice Neil Gorsuch, who focused primarily on the tests that would be used to evaluate the partisan bias of redistricting, and Justice Clarence Thomas, who assumed his familiar role as silent observer, the remaining justices seemed to agree that, in general, gerrymandering is a problem.
However, the degree of condemnation varied across the ideological spectrum. The case, Gill v. Whitford [SCOTUSblog materials; JURIST report], relates to the voting district map in Wisconsin where, according to the plaintiff, a particularly extreme form of gerrymandering has virtually guaranteed victories for Republican candidates for the next several decades. Justice Samuel Alito gave a somewhat tempered view of the practice, stating "I mean ... gerrymandering is distasteful." On the other end of the spectrum, Justice Ruth Baer Ginsburg was much more direct in stating what she finds so problematic about gerrymandering while questioning Erin Murphy [official profile], an attorney representing Wisconsin.
I would like to ask you what's really behind all of this. The precious right to vote, if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote? Whether it's a Democratic district or a Republican district, the result—using this map, the result is preordained in most of the districts. Isn't that—what becomes of the precious right to vote? Would we have that result when the individual citizen says: I have no choice, I'm in this district, and we know how this district is going to come out? I think that's something that this society should be concerned about.The respondents in this case, including lead plaintiff and University of Wisconsin law professor William Whitford [official profile], won [opinion, PDF] at the trial level before the US District Court for the Western District of Wisconsin [government website]. They argued that the proper remedy to the state's "extreme" gerrymandering would be an intervention by the non-political branch of government, the judiciary.
Among the concerns for the Supreme Court at Tuesday's hearing was the question of what test the courts should apply to determine if partisan redistricting has gotten so out of control that it violates the Constitution's first amendment right to free association or the fourteenth amendment's Equal Protection clause and, if it does, what system should be employed to draw better, non-partisan voting maps.
Three tests have been suggested for courts to use to determine how gerrymandered a state is, and the justices questions focused on one of those test: the efficiency gap test, or EG. The test was created in 2014 by political scientist Eric McGhee [official profile], and has been viewed favorably (although certainly not without controversy). Pressed about the effectiveness of one of the tests over the other, Paul Smith [official profile], the attorney representing the respondents, said it wouldn't really matter which test was used to evaluate Wisconsin's map, because it fails them all. Justice Elena Kagan seemed to agree, telling Smith "it seems to me that this map goes over pretty much every line you can name..." She did question how courts would know exactly when, at what point, the line of constitutionality had been crossed, to which Smith seemed to suggest a hybrid application of the three different test. Justice Gorsuch took issue with the suggestion.
So, Mr. Smith, what is the formula that achieves that? Because the Court below didn't rely on efficiency gap entirely. It looked also at the partisan symmetry test. It reminds me a little bit of my steak rub. I like some turmeric, I like a few other little ingredients, but I'm not going to tell you how much of each. And so what's this Court supposed to do, a pinch of this, a pinch of that?Several humorous moments occurred during the hearing. At one point, noting the complexity of some of the more technical issues, Chief Justice John Roberts referred to the proposed tests as "sociological gobbledygook," to which Justice Stephen Breyer added it was "pretty good gobbledygook." (Relatedly, although perhaps more seriously, Justices Kagan and Sotomayor articulated the technological and algorithmic advances in the field of political science since the 2004 decision in Vieth v. Jubelirer [opinion]). Later, an exchange between Smith and Alito drew laughs when Alito, while seemingly asking Smith if 2017 is the proper time for the Court to finally intervene in a matter it has repeatedly stayed out of, capped a lengthy, multi-faceted statement with: "Is 2017 the time to jump into this? That's a question." Smith asked if there was really a question in Alito's statement. Alito replied "Yes, there is a question there. There's about 10 of them."